Citation Nr: 0305955
Decision Date: 03/28/03 Archive Date: 04/08/03
DOCKET NO. 99-20 300A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Entitlement to a rating in excess of 20 percent for residuals
of an avulsion fracture of the right posterior malleolus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
R. A. Seaman, Associate Counsel
INTRODUCTION
The appellant is a veteran who served on active duty from May
1977 to June 1978. This matter comes before the Board of
Veterans' Appeals (Board) on appeal from an August 1998
rating decision by the Department of Veterans Affairs (VA)
Regional Office (RO) in Los Angeles, California. In the same
decision, the RO denied a temporary total rating based on the
need for convalescence. In his notice of disagreement with
the August 1998 rating decision, the veteran expressly
limited his appeal to the matter of the rating for residuals
of an avulsion fracture of the right posterior malleolus.
Accordingly, this is the only issue before the Board. The
veteran was scheduled for a hearing before a hearing officer
at the RO in April, 2000. He canceled the hearing by written
communication. The case was previously before the Board in
January 2001, when it was remanded for additional
development.
FINDING OF FACT
Residuals of an avulsion fracture of the right posterior
malleolus are not shown to be manifested by more than marked
limitation of ankle motion.
CONCLUSION OF LAW
A rating in excess of 20 percent for residuals of an avulsion
fracture of the right posterior malleolus is not warranted.
38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a,
Diagnostic Code 5271 (2002).
REASONS AND BASES FOR FINDING AND CONCLUSION
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the Veterans
Claims Assistance Act of 2000 (VCAA), (codified at
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002))
became law. Regulations implementing the VCAA have now been
published. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)
(2002). The VCAA and implementing regulations apply in the
instant case. See VAOPGCPREC 11-2000.
The Board finds that there has been substantial compliance
with the pertinent mandates in the VCAA and implementing
regulations. The claim has been reviewed on its merits, and
well-groundedness is not an issue. In the August 1998
decision, in an August 1999 statement of the case, and in a
July 2002 supplemental statement of the case (SSOC), the
veteran was given notice of the evidence necessary to
substantiate his claim, and of what was of record. In the
July 2002 SSOC, he was notified what evidence he needed to
submit in order to substantiate his claim, and what evidence
VA would obtain. The SSOC specifically cited the changes in
the law brought about by the VCAA and implementing
regulations; it clearly explained that VA would make
reasonable efforts to help the veteran get pertinent
evidence, but that he was responsible for providing
sufficient information to VA to identify the custodian of any
records. See Quartuccio v. Principi, 16 Vet. App. 183
(2002).
The RO has obtained the veteran's service medical records and
all identified records from postservice medical care
providers, and he has been accorded VA examinations. There
is no indication that there is any relevant evidence
outstanding, and nothing to suggest that another examination
is indicated. Development is complete to the extent
possible; VA's duties, including those mandated by the VCAA,
are met.
Background
The RO granted service connection for residuals of a chip
fracture of the right posterior malleolus, rated
noncompensable, in August 1989. Service medical records show
the veteran sustained a fracture of the malleolus of his
right ankle in service when he rose from his bed in April
1978. He subsequently received treatment in service for
right ankle pain and tenderness, and a report of examination
on his separation from service shows the ankle was casted on
his discharge from service. In February 1994, the RO
increased the rating of the right ankle disability to 10
percent; and in May 1995, the rating was again increased to
20 percent.
Postservice medical evidence includes private medical records
showing that the veteran sustained complex fractures of the
right tibia and fibula in December 1997 due to a motor
vehicle accident. In the same month, surgery consisting of
an open reduction and internal fixation procedure was
performed.
On VA examination in April 1998, the veteran complained of
increasing right ankle pain and daily right leg pain. He
reported that postservice injuries included fractures of the
right tibia and fibula in December 1997. The examiner noted
that the veteran's right leg was in a cast, and he had used
crutches over the prior two months "secondary to recent
right leg fractures." The veteran alleviated the right leg
pain with bed rest, leg elevation, and pain medication. He
performed his own daily personal care with some difficulty.
He walked with difficulty due to back pain and leg pain, and
stated that he could not walk further than 30 feet because of
ankle and back pain. The cast on his right foot prevented
objective examination of his ankle. There was no evidence of
muscle atrophy. X-rays of the right ankle reflected
residuals of the 1997 fractures and fixation. The diagnosis
was right ankle pain secondary to degenerative joint disease,
and right lower leg pain secondary to the December 1997
fractures of his right tibia and fibula. The examiner
reported that there was significant physical limitation at
the time of the examination due to problems as outlined in
the diagnosis.
VA outpatient records dated from July 1994 to January 2002
report treatment the veteran received for numerous medical
problems, including of the right ankle. The records indicate
he was issued a soft ankle brace in September 1994 after
complaints of right ankle instability. An October 1999
outpatient report shows complaints of chronic right ankle
pain, aggravated by active plantar flexion. The pain was
most severe when the veteran walked long distances without a
cane. He reported some numbness and tingling on the medial
and lateral dorsal foot, and reportedly had therapy to help
with right ankle range of motion and strength. A May 2000
outpatient report notes continued right ankle pain and
instability. The veteran stated that he used to have
problems due to valgus collapse, but had not experienced
those problems since the open reduction and internal fixation
in 1997. The May 2000 record indicates that he sprained the
ankle (he heard a "snap") a few weeks prior to the clinical
visit. Examination revealed right ankle pain on extension,
with no pain on flexion, eversion, or inversion. There was a
palpable "pop" on extension. The ankle joint was
reportedly non-irritable. X-rays revealed healed fractures
of the distal tibia and fibula, and the most distal screw in
the tibia appeared to extend within soft tissues of the
medial ankle. The diagnosis was status post right ankle
fracture, times three; and status post open reduction and
internal fixation, with chronic ankle pain and likely early
osteoarthritis. An outpatient record dated in January 2002
shows a diagnosis of bilateral ankle sprain, attributed to
the veteran being assaulted the day before.
On VA examination in March 2002, the veteran complained of
right ankle pain, occasional swelling, and instability when
he took big steps. He stated that problems referable to his
right ankle "changed his life," and he recounted the
details of the December 1997 motor vehicle accident. Since
the December 1997 accident, he had worn high-top boots and a
foot-ankle orthosis that extended up the posterior aspect of
the right thigh. He contended that the right ankle injury he
sustained in December 1997 was the result of weakness of his
right leg secondary to the right ankle injury he sustained in
April 1978.
Examination revealed that the veteran walked with a mild limp
when the orthosis was removed from his right ankle. The
right ankle demonstrated a full range of motion as compared
to the left ankle, with dorsiflexion to 20 degrees and
plantar flexion to 45 degrees, bilaterally. The examiner
expressly noted that the range of motion of both ankles was
normal, with no associated weakness, fatigue, or lack of
endurance or coordination. There was a two-centimeter by
four-centimeter split-thickness healed scar over the dorsal
aspect of the right leg, just proximal to the ankle joint.
Distal to that was a well-healed Z-scar over the anterior
aspect of the right ankle and a smaller scar over the lateral
malleolus. The scars were non-tender and non-disfiguring.
X-rays of the right ankle demonstrated mild osteoarthritic
spur changes in the region of the medial malleolus and the
medial wall of the talus. The ankle joint appeared normal,
as did the hindfoot and subtalar joint. There were
transfixion screws from the 1997 fractures. The diagnosis
was status postoperative open reduction and internal
fixation, comminuted fracture of the right distal tibia and
fibula, secondary to a major injury in 1997 with residual
right thigh atrophy and right ankle arthritis.
In direct response to the specific questions posed in the
January 2001 Board remand, the examiner reported as follows:
It is my opinion that the current
findings and the surgery on the right
ankle are due entirely to the December
1997 motor vehicle accident. There were
no other contributing factors. The 1978
injury of the right ankle was primarily a
soft tissue type of injury with little in
the way of any residual problems.
The [veteran] has no present
manifestations of the avulsion fracture
of the right posterior malleolus, which
occurred during his service. The records
indicate a subsequent union, and there
are records in the chart that state that
the fracture site was no longer visible,
and there was no evidence of any joint
residual problem prior to the 1997 (motor
vehicle accident). On today's
examination, there is no evidence of
pain, weakness, fatigue, lack of
endurance or incoordination associated
with the ankle joints.
Any current functional loss, weakness, or
discomfort can be attributed solely to
the 1997 accident. I find that there is
little in the way of objective findings
at the present time despite the
significant 1997 injury. There is no
functional loss due to weakness, pain on
use or flare ups associated with the
right ankle injury that occurred while in
service. I see no reason that he needs a
foot-ankle orthosis, any special shoe, a
cane, or any other ambulatory devices. I
do not think that any everyday activity
is compromised by his current orthopaedic
findings, and I feel that he is certainly
employable without restrictions.
Legal Criteria and Analysis
Disability ratings are determined by application of a
schedule of ratings, based on average impairment of earning
capacity. Separate diagnostic codes identify the various
disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. In
regard to any request for an increased schedular evaluation,
the Board will only consider the factors as enumerated in the
applicable rating criteria. See Massey v. Brown, 7 Vet. App.
204 (1994).
In a claim for an increased rating, the present level of
disability is of primary concern; the regulations do not give
past medical reports precedence over current findings.
Francisco v. Brown, 7 Vet. App. 55 (1994). Where there is a
question as to which of two evaluations apply, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R.
§ 4.7.
The veteran's right ankle disability is currently rated under
the code pertaining to limitation of ankle motion, 38 C.F.R.
§ 4.71a, Code 5271, which provides that a 10 percent rating
is warranted where there is moderate limitation of motion. A
20 percent rating is warranted where there is marked
limitation of motion. 20 percent is the maximum rating under
Code 5271. To warrant a rating in excess of 20 percent for
the veteran's right ankle disability, the ankle would have to
be manifested by ankylosis. 38 C.F.R. § 4.71a, Code 5270.
38 C.F.R. § 4.71, Plate II, reflects that normal dorsiflexion
of the ankle is from zero to 20 degrees, and normal plantar
flexion is from zero to 45 degrees.
In rating disabilities of the musculoskeletal system,
additional rating factors include functional loss due to pain
supported by adequate pathology and evidenced by the visible
behavior of the claimant undertaking the motion. 38 C.F.R. §
4.40. Inquiry must also be made as to weakened movement,
excess fatigability, incoordination, and reduction of normal
excursion of movements, including pain on movement.
38 C.F.R. § 4.45. Functional impairment shall also be
evaluated on the basis of lack of usefulness, and the effects
of the disability upon the person's ordinary activity.
38 C.F.R. § 4.10; DeLuca v. Brown, 8 Vet. App. 202 (1995).
Here, the evidence as a whole (most significantly the
findings on VA examination in March 2002) reflects that even
despite the effects of the intercurrent ankle injury
fractures the veteran sustained in 1997 (which are not
service connected and may not be considered in rating the
service connected residuals of the malleolus fracture), the
range of motion of the veteran's right ankle is normal, i.e.,
from zero to 20 degrees on flexion and from zero to 45
degrees on flexion on examination in March 2002. The March
2002 examiner also expressly stated that any current loss of
motion, function due to factors such as pain, weakness, etc.
was due to the intercurrent injury in 1997, and not the
service connected disability. There is no competent
(medical) evidence/opinion to the contrary. The service
connected residuals of an avulsion fracture of the right
posterior malleolus are currently assigned the maximum
scheduler rating provided for limitation of motion of the
ankle. To warrant a higher rating, the evidence would have
to show that the disability has resulted in ankylosis of the
ankle. The evidence does not show anywhere near such a level
of disability due to the service connected residuals of an
avulsion fracture of the right posterior malleolus.
The doctrine of resolving reasonable doubt in a claimant's
favor does not apply in this case as the preponderance of the
evidence is against the claim.
ORDER
A rating in excess of 20 percent for residuals of an avulsion
fracture of the right posterior malleolus is denied.
____________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.